In order to end an employment contract, French labor law requires employers to follow a particular multi-step procedure. Firstly, the employer has to summon the employee to a preliminary interview. This interview cannot take place less than five days after the employee has received the convocation letter. Such a delay aims at allowing the employees to find, if they want to, a defender to assist them during the interview and to prepare them to face reproaches by the employer.
Regarding these goals, a controversial issue was raised in France. Some lawyers considered it nonsense that French law does not force the employer to mention, in the convocation letter, the facts which may be the source of the preliminary interview. The concern raised, was how could employees be expected to prepare their defense if they do not know, with any certainty, what the employer was going to put forward during the interview?
Indeed, the French Labor Code only requires that the convocation letter state the purpose of the interview, which is often the same for every employee – convocation to a preliminary interview to determine possible disciplinary measures including termination. This standardized-purpose, indicated on the top of the letter as its “subject”, does not really shed light on what events motivated the employer to end the employment relationship.
In order to challenge French law, a litigant must find higher order provisions such as international conventions. National judges are competent to apply every provision that France ratified, and in doing so, to depart from French provisions violating these superior rules.
Two sources of law were invoked: Article 6 of the European Convention of Human Rights, which protects the Rights of the Defense, and Article 7 of the 151st International Labor Organization Convention, which stipulates that “the employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.”
The European Court of Human Right periodically reminds parties that article 6 provisions are only applicable to judicial proceedings. As a matter of fact, the preliminary interview could not be assimilated to a trial. So it appeared that the article 6 provisions of the European Convention could not constitute a relevant ground to criticize French law.
The Paris Court of Appeals considered that the French dismissal procedure was illegal under both the European Convention and the International Labor Convention. Finally, the Cour de cassation, higher jurisdiction of the civil order, considered that French law is perfectly consistent with France’s international commitments.
Challenging French law has a deeper magnitude. In a context of reforms less favorable towards employees, new litigation strategies have been brought to light by litigants, citing that a European or International standard would provide clear legitimacy to the proposed solutions.
Author: Pascaline Kleim